SHEW BUX MOHATA Vs. BENGAL BREWERIES LTD

JUDGEMENT

(1.) This appeal arises out of an execution proceedings. It is filed by the decree-holders and is directed against the judgment of the High Court at Calcutta setting aside the order of a learned Subordinate Judge at Alipore dismissing the objection of a judgment-debtor to the execution. The High Court held that the decree having earlier been executed in full, the present proceedings for its execution were incompetent and thereupon dismissed the decree-holders' petition for execution. The question that arises is whether the decree had earlier been executed in full.

(2.) The facts appear to have been as follows: -One Sukeshwari died some-time prior to 1944 possessed of three plots of land which at all material times, bore premises Nos. 26, 27 and 28, Dum Dum, Cossipore Road, in the outskirts of Calcutta. She left a will of which defendants Nos. 1, 2 and 6 were the executors. The executors granted leases of these different plots of land to defendants Nos. 3, 4 and 5 respectively and put them in possession.

(3.) Certain persons called Mohatas whose interests are represented by the appellants in the present appeal, claimed that Sukeshwari had only a life interest in the lands which on her death had vested in them and the executors had therefore no right to grant the leases. They filed a suit against the executors and the tenants on September 15, 1954, in the Court of a Subordinate Judge at Alipore for a decree declaring that the defendants had no right to possess the lands and for khas possession by evicting the defendants from the lands by removing the structures, if any, put up by them there. On March 30, 1948, the learned Subordinate Judge passed a decree for khas possession in favour of the Mohatas and gave the defendants six months' time to remove the structures put up on the land. It is the execution of this decree with which the appeal is concerned.